Supreme Court Rules On Strip Search Issue

This is MORNING EDITION, from NPR News. Good morning. I'm David Greene.

A sharply divided Supreme Court has ruled that individuals arrested for even the most minor offenses can be stripped searched before they are jailed while awaiting a hearing. The high court's five-to-four decision came in the case of Albert Florence, the finance director at a New Jersey BMW dealership. He was arrested, strip searched and held in prison for a week because of a computer error.

NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Florence, his wife, and four-year-old son, were driving to a family event when they were pulled over. Mrs. Florence was driving. She was not cited for any offense, but when the trooper did a roadside check on the owners of the car, he found an outstanding arrest warrant for Mr. Florence for failure to pay a fine seven years earlier. Florence was arrested, handcuffed and led away.

It would later turn out that the computer information was wrong. Florence had paid the fine years earlier, but the state had failed to purge the arrest warrant from its files.

In the meantime, Florence would find himself strip searched twice and jailed for seven days before he finally went before a judge and was released.

ALBERT FLORENCE: I went from having a good day with my wife standing next to me to being scared, petrified, humiliated.

But on Monday, the U.S. Supreme Court disagreed. Writing for the court's conservative wing, Justice Anthony Kennedy pointed to the dangerousness of most prisons, and said that strip searching everyone routinely is a reasonable way to ensure safety for inmates and guards alike.

Justice Stephen Breyer, writing for the dissenters, argued that when a detainee is brought in on a minor charge that involves neither violence nor drugs, correctional officials should have to cite some reason to justify a strip search. He noted that in New Jersey, prisoners have to go through advanced metal detectors, anyway.

There are some 700,000 arrests from minor offenses in the U.S. each year, and most of the individuals facing these minor charges are brought before a judge and released pending resolution of their cases. But an undetermined number have found themselves strip searched and behind bars because there's no judge on duty, because of a bureaucratic snafu, or because of an error, as in Albert Florence's case.

The dissenters noted that people have been detained and strip searched for offenses as minor as biking with an inaudible bell, walking a dog off leash, and driving with a noisy muffler.

But Justice Kennedy countered that given the number of total arrests each year - 13 million - it would be unworkable for correctional officials to exempt one class of prisoner from being strip searched. Indeed, he said, even people detained for minor offenses can turn out to be the most devious and dangerous criminals. He cited as an example the case of Timothy McVeigh, the Oklahoma City bomber, who was initially arrested for driving without a license plate.

Experts said yesterday that the court's ruling might have a profound impact on practices throughout the country. At least 10 states currently have laws banning strip searches for minor offenders, and the Federal Bureau of Prisons and U.S. Marshals Service both bar the practice, too.

Harvard Law Professor Carol Steiker.

CAROL STEIKER: What the court did, really, was to take a practice that was not universal and give it its constitutional imprimatur. Now, whether states will actually change their practices and move to do this a really good question.

TOTENBERG: George Washington University law Professor Orin Kerr puts it this way.

ORIN KERR: This gives the government green light - for the most part - to do strip searches of whoever is brought into the jail.

TOTENBERG: Unresolved by yesterday's Supreme Court decision was another issue pending in Albert Florence's case: whether he was arrested and detained legally to begin with.